Crook et al v. Wyndham Vacation Ownership, Inc. et al

Filing 51

ORDER REQUESTING SUPPLEMENTAL BRIEFING ON DEFENDANTS' 47 MOTION FOR CLARIFICATION. The parties shall submit supplemental briefs of no more than ten pages, double spaced, on or before June 26, 2015. Signed by Judge William H. Orrick on 06/18/2015. (jmdS, COURT STAFF) (Filed on 6/18/2015)

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

THOMAS CROOK, et al.,

Case No. 13-cv-03669-WHO

Plaintiffs,
5
v.
6
7

WYNDHAM VACATION OWNERSHIP,
INC., et al.,

8

ORDER REQUESTING
SUPPLEMENTAL BRIEFING ON
DEFENDANTS’ MOTION FOR
CLARIFICATION

Defendants.

9

Re: Dkt. No. 47

This order concerns defendants’ pending motion for clarification. Dkt. No. 47. In their
briefing on the motion and at oral argument, the parties focused on whether their arbitration

11
United States District Court
Northern District of California

10

agreement authorizes class arbitration, whether plaintiffs are entitled to a jury trial on the

12

availability of class arbitration, and whether plaintiffs may litigate their class claims in federal

13

court while their individual claims are resolved in arbitration. The parties also touched on whether

14

the availability of class arbitration is a question to be resolved by the arbitrator, or rather is a

15

gateway question of arbitrability presumptively for the court to decide.

16

The parties did not discuss another issue that appears to be relevant – if not dispositive – to

17

defendants’ motion: whether the parties clearly and unmistakably agreed that an arbitrator would

18

decide whether class arbitration is available. I am considering whether and how that issue impacts

19

this case. A number of courts, including courts in this district, have held that where the parties

20

incorporate the AAA Supplementary Rules for Class Arbitrations into their arbitration agreement,

21

they clearly and unmistakably agree to submit the question of the availability of class arbitration to

22

the arbitrator. See, e.g., Reed v. Florida Metro. Univ., Inc., 681 F.3d 630, 635-36 (5th Cir. 2012)

23

abrogated on other grounds by Oxford Health Plans LLC v. Sutter, 133 S. Ct. 2064 (2013) (“The

24

parties’ consent to the Supplementary Rules . . . constitutes a clear agreement to allow the

25

arbitrator to decide whether the party’s agreement provides for class arbitration.”); AccentCare

26

Inc. v. Echevarria, No. 15-cv-01078-JSW, 2015 WL 3465761, at *2-4 (N.D. Cal. June 1, 2015)

27

(because the parties’ arbitration agreements incorporated the AAA rules, “the arbitrator, not the

28

Court, shall determine whether the . . . agreements allow for classwide arbitration”) (appeal

1

pending); Marriott Ownership Resorts, Inc. v. Flynn, No. 14-cv-00372, 2014 WL 7076827, at

2

*12-15 (D. Haw. Dec. 11, 2014) (“[I]ncorporation of the Supplementary Rules constitutes clear

3

and unmistakable evidence of an intent to have an arbitrator address the question of class

4

arbitrability.”); Chesapeake Appalachia, LLC v. Burkett, No. 13-cv-03073, 2014 WL 5312829, at

5

*8 (M.D. Pa. Oct. 17, 2014) (“[I]ncorporation of the AAA rules into the lease at issue, which

6

grants the arbitrators the power to decide their own jurisdiction, vested the arbitrators with the

7

authority in this case to decide issues of arbitrability, including the issue of ‘who decides’ class

8

arbitrability.”); Price v. NCR Corp., 908 F. Supp. 2d 935, 945 (N.D. Ill. 2012) (by incorporating

9

the Supplementary Rules for Class Arbitrations into their agreement, “the parties agreed that an
arbitrator, and not this Court, would determine whether the agreement authorizes class

11
United States District Court
Northern District of California

10

arbitration”); Yahoo! Inc. v. Iversen, 836 F. Supp. 2d 1007, 1012 (N.D. Cal. 2011) (“[T]he

12

incorporation by reference of the AAA Supplementary Rules as they existed at the time [the

13

parties] entered into their contract constitutes a clear and unmistakable agreement to have the

14

arbitrator decide questions regarding the arbitrability of class-wide claims.”) (internal quotation

15

marks and alterations omitted); but see Chesapeake Appalachia, LLC v. Suppa, No 14-cv-00159,

16

2015 WL 966326, at *10 (N.D.W. Va. Mar. 4, 2015) (“[T]he Court is unpersuaded that the broad

17

language of the arbitration clause in the subject leases, or even the reference to the AAA rules,

18

clearly and unmistakably evinces the parties’ intent to arbitrate the availability of classwide

19

arbitration.”).

20

I am interested in whether the parties agree with the reasoning in these decisions, and

21

whether – and to what effect – that reasoning applies here. To address these questions – and any

22

other factual or legal issues concerning whether the parties agreed to arbitrate the availability of

23

class arbitration that have not already been briefed – the parties shall submit supplemental briefs

24

of no more than ten pages, double spaced, on or before June 26, 2015. I will decide the motion for

25

clarification after considering the supplemental briefs. Do not repeat arguments already made.

26
27
28

IT IS SO ORDERED.
Dated: June 18, 2015

___________________________________________
WILLIAM H. ORRICK
United States District Judge
2